COMMISSIONER OF POLICE v. SEM
[SUPREME COURT, ACCRA]
DATE: 27TH JULY, 1962
COUNSEL
G. R. Mc V. Francois for the appellant.
K. Dua-Sakyi, D.P.P., for the respondent (the State).
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
Adumua Bossman J.S.C. delivered the judgment of the court. This appeal arises out of the
prosecution of the appellant in the Circuit Court, Accra, presided over by Mrs. Annie Jiagge, on the
charge On the charge of “Defilement of female between ten and fourteen years of age, contrary to
section 102 (1) of the Criminal Code: Act No. 29/60,” the particulars of which charge were that he
“during the month of April 1961, at Kokomlemle within the jurisdiction of the court, did carnally
know one Aba Mindwenbu, a female between ten and fourteen years of age.” He was convicted, not
of that graver charge preferred, but of the lesser offence of indecent assault, and sentenced to six
months imprisonment with hard labour, the trail judge explaining that:
“The evidence, however, falls short of what is required to prove defilement of a female. The doctor’s
evidence was that the hymen was not broken. I find the charge of indecent assault proved. I find accused
guilty and convict accused accordingly.”
The appellant while not disputing that it was open to the learned trial judge, by virtue of section 159
(2) of the Criminal Procedure Code, 1960,1(1) to find him guilty or that lesser offence, contends,
however, that the conviction is unwarranted and wrong and accordingly appeals against it. It falls
therefore to consider whether the appellant’s contention is well founded or not.
The prosecution’s case, in the nature of things, depended mainly on the evidence of the girl alleged to
have been defiled, the material portion of which given on the 23rd May, 1961, when the trial
commenced, was the following:
“I am maidservant to Mr. Tham (P.W.2) — a school girl reading in class 5 and twelve years of age. In
April this year, accused who lives in the same house with me told me as I was going to have my bath that
he wanted to come and have his bath with me in the bathroom. I refused. I had my bath and then went
for a drink of water. Accused held me while I was at the tap getting the water. The water tap is at the
back of the house. I tried to shout but accused covered my mouth and threw me on the ground. He had
sexual intercourse with me… It was at night near the water pipe at the back of the house . . . When he left
me, I wept and went upstairs. My mother [mistress] was asleep when I went up and I told no one. About
three weeks later my father [guardian] noticed that I could not walk properly and asked what was wrong.
I told him, I could not walk properly because I had pains in my lower abdomen. At my father’s request I
took him to accused and told him in presence of accused that accused was the man who had sexual
intercourse with me. Accused denied. I was taken to the police station and then to the hospital where I
had medical treatment.”
[p.79] of [1962] 2 GLR 77
Under cross-examination she disclosed that several people lived in the house in question and that
many go to the water tap which was standing just six yards away behind the house. It seems
remarkable and somewhat incredible, therefore, that the appellant, another inmate of the house who
must have been aware of how the other inmates use the water tap, should so recklessly take the risk of
assaulting her in such a seemingly public place, even though she explained that it was dark and there
was no one about at the time. As to how the alleged incident came to light, her evidence already
referred to in examination-in-chief that, “about three weeks later my father noticed that I could not
walk properly and asked what was wrong. I told him,” as well as her further explanation under
cross-examination that, “it is true I said nothing about this to anyone for three weeks. . . it is true that the woman with whom I was staying as maidservant (P.W.3) asked what was wrong with me and beat
me one Thursday. It was then that I told both my father and mistress what was wrong with me,”
rendered the case an extremely weak one indeed. See R. v. Pantaney2(2) where the Court for Crown
Cases Reserved quashed a conviction for a sexual offence based on a complaint made three weeks
after the alleged incident. Finally, it seems to us that the medical evidence tendered to support the case
for the prosecution rather decisively destroys it and tendered to dissociate the appellant from the
commission of the offence. The learned circuit judge dealing with that aspect of the case said as
follows:
“P.W.1 was examined by a medical officer and bruises and pus were found in her vagina and semen
found in her vaginal smear. Her hymen was found intact and the presence of semen in her vaginal smear
according to the medical officer showed that sexual intercourse might have been attempted on her not
more than five days before examination. P.W.1 did however state that the assault on her by accused was
about three weeks before she made her report. Either P.W.1 was mistaken about the time, or there had
been another attempt on her not more than five days before the date of examination.”
There was, however, with great respect to the learned circuit judge, no grounds whatsoever for both
suppositions, and neither was the case of the prosecution. The fact that she (the learned judge) was
obliged to call in aid those conjectures as the basis of her ultimate judgment convicting the appellant,
rather exposes the inescapable situation that the charge or case as laid against the appellant and
unamended right throughout the trial to the end, was definitely not established with that certainty
necessary in a criminal case.
On the evidence of the principal witness, therefore, it seems extremely doubtful if the police would
have taken the case to court at all were it not for a document purporting to be a confession which the
master and mistress of the girl (P.W.s 2 and 3) managed to procure from the appellant, admitted as
exhibit D at the trial and in the following terms:
“I Andrews Ansa Sem had sexual intercourse with Aba Mindwenbu a school-girl under age and the case
was reported to police station. I have promised Mr. Tham to bear cost, including adultery fee—when the
case is withdrawn from the police station. This was written on 5th May, 1961. (sgd.) Andrews Ansa
Sem.”
The evidence of the girl’s guardian or master as to how the document came into existence was that
when he first questioned the appellant
[p.80] of [1962] 2 GLR 77
whether it was true, as his maidservant reported, that he had had intercourse with her and the appellant
denied, he asked him to go and think over the matter, and that afterwards:
“Accused came with some of the other tenants and said that although he had not committed the offence,
in order to avoid any disgrace he was prepared to pay the cost of any treatment that P.W.1 (the girl)
might undergo. I reported the matter to the police. After the accused had been granted bail he came to me
and told me that it was true that he had sexual intercourse with P.W.1 and that he was begging me to
withdraw the case from the police. I called witnesses and asked him to write down what he had told me
and he wrote it down. I did not tell accused what to write.”
P.W.2 called none of those alleged to have been present when appellant made exhibit D — apart from
his wife P.W.3. On the other hand the appellant’s explanation as to how the document came into
existence was the following:
“It is not true that I made a confession that I had had sexual intercourse with P.W.1. It is true that I wrote
exhibit D. P.W.2 called me and my sister and told us that he had sent a message to the parents of P.W.1
to come down, but that he had had second thoughts and had decided to remove the case from the police;
that if they did not tell me before removing the case from the police, I would think that they had
disgraced me and I might take legal action against them. I asked them to allow me to call Mr. Kwakye
the man who bailed me. Later Mr. Kwakye came there. P.W.2 then said on second thoughts he had
decided to remove the matter from the police. I said he could do that as it was he who took the matter
there. P.W.2 said I must write that I agree to his suggestion. P.W.2 produced a note-book and I wrote something in it and gave it to him but he said ‘No!’ that was not what he wanted … I wrote four different
statements. P.W.2 wrote a fifth statement and asked me to copy it. He said if I wrote that statement he
would remove the case from the police [exhibit D shown witness—which he identified.]”
The appellant’s version of the making of exhibit D was confirmed by the three persons whom he said
were present and whom he called to testify on his behalf.
When the learned circuit judge came to consider exhibit D in the course of her judgment she said:
“Exhibit D cannot be said to be entirely voluntary and I therefore exclude it … Accused in his defence
denied having had sexual intercourse with P.W.1. He claimed that he had been forced (rather inveigled)
to make exhibit D. I think this claim has some justification and I have excluded it.”
Having rejected the alleged confession, and thereby impliedly accepted the evidence of the appellant
and his witnesses as to the circumstances in which the alleged confession came to be made, the
learned circuit judge nonetheless proceeded to argue in effect that the very circumstance that the
appellant agreed to make the confession is proof of his guilt. She said as follows:
“According to D.W.2, D.W.3 and D.W.4, P.W.2 wrote on a piece of paper what he wanted accused to
write down as his confession, the paper was read to them all, and they agreed that accused should copy
[and sign] it because they said P.W.2 said he wanted to withdraw the case from police but he did not
want accused to bring an action that he had been falsely accused … One would ask why go to all that
trouble to have the case taken from court? If accused did not commit the offence, the court is just the
place to go to have his name cleared.”
[p.81] of [1962] 2 GLR 77
This last observation of the learned judge is true enough; unfortunately however, many a person is
prepared to make any sacrifice to avoid going to court, and the law itself is obliged to take cognizance
of that stark reality of life by making provision for the law of blackmail to protect the class of persons
who are scared to death of a court trial. It is also the clearly settled general policy of the law that
nothing which might have taken place during negotiations for the settlement of a dispute between
parties, should afterwards, if the negotiations fail and the dispute has to be tried and decided on its
merits, be used by a trial judge to prejudice either party. So in Davies v. Kofi Kuma,3(3) Coussey, J.
(as he then was) pointed out that:
“It is a settled principle that nothing which passes between parties in any attempt at arbitration or
compromise should be allowed to effect the slightest prejudice to the merits of their [respective] cases as
it eventually comes to be tried by the court.”
That was said in a civil case, but the principle applies with equal force in respect of a bonafide attempt
to settle a criminal matter.
When the learned judge observed:
“I am aware of the fact that the statement of P.W.1 that accused had had sexual intercourse with her is
not corroborated, and I have warned myself against the danger of convicting on such evidence, ie.
P.W.2’s allegation of sexual misconduct”
but then proceeded to hold that she was satisfied “from the conduct of the accused and the evidence as
a whole that accused did attempt to have sexual intercourse with P.W. 1,” it seems reasonably clear
that she could have been referring to nothing else except the evidence as to the appellant’s conduct to
procure withdrawal of the case from the police by the girl’s guardian P.W.2, i.e., the conduct which
she described as “all that trouble to have the case taken from court.” It is true she mentioned “the
evidence as a whole,” but when the girl’s evidence is excluded, it is true to say there is scarcely any
other evidence which can be said to be incriminating, except the evidence of the appellant’s conduct
to get the case withdrawn. ‘Nevertheless, although that conduct on his part is Suspicious, it is not a
circumstance which the law will allow to be taken into account as indicating or pointing to guilt,
particularly when the learned judge herself found that that conduct prevented the appellant’s
confession from becoming voluntary and admissible. The fact that a prisoner has made a confession which is subsequently found to have been procured by inducement or other improper means so that it
has to be excluded from consideration has never been held to provide good ground for inferring the
guilt of the prisoner, but that is what appears to us to have taken place in the instant case. The learned
judge seems to have argued something like this: — the appellant’s signing of the confession, exhibit
D, under the inducement by the girl’s guardian (P.W.2) that it is only on that condition that he would
withdraw the case from the police, renders the confession inadmissible; yet the very conduct of being
prepared to sign even a confession to get the case withdrawn must be a sure indication of the
appellant’s guilty conscience and his guilt; for otherwise, “why all that trouble to have the case taken
from the court? If the accused did not commit the offence, the court
[p.82] of [1962] 2 GLR 77
is just the place to go to have his name cleared.” It is plausible reasoning; but our current standards of
the administration of justice will not countenance such reasoning.
At any rate, the crucial point in the appeal, as it seems to us, is that when the confession contained in
exhibit D is excluded, we are left with only the girl’s story which, as pointed out, is so gravely and
materially contradicted by the medical evidence, that it is impossible to accept as correct a conviction
under such circumstances. In conclusion, therefore, after the most anxious and careful consideration
of the evidence available on record and the circumstances of the trial, we are driven to no other
conclusion than that the conviction cannot be supported and that the appeal should be allowed and the
conviction set aside.
DECISION
Appeal allowed.
Conviction set aside.
